Ohio BWC Agrees to Settle Class Action Lawsuit for Overcharging Employers

Business owners who may be eligible to share in a $420 million class action settlement over inflated premiums charged by the Ohio Bureau of Workers’ Compensation have until Oct. 22 to submit a claim form.

The settlement stems from a class action lawsuit filed in 2007 alleging that the BWC illegally overcharged thousands of business owners who did not qualify for the group experience rating plan for policy years 2001 to 2008. A Cuyahoga County Common Pleas Court judge awarded the business owners $859 million following a bench trial in 2012, although the Eighth District Court of Appeals subsequently reduced that figure to $650 million in May 2014.  The case was pending appeal to the Supreme Court of Ohio when the two sides reached the settlement agreement.

The Settlement Administrator, who is managing the distribution of funds on behalf of the parties, sent notices on Friday to all business owners who qualify as class members in the lawsuit.  The notice contained a claim form that business owners must submit in order to qualify for their part of the settlement. Owners who have not received a notice but believe they may be eligible to participate in the settlement are encouraged to call the Settlement Administrator at (844) 322-8230.

The settlement defines class members as those business owners who, in one or more policy years from 2001 through 2008, (1) subscribed to the state workers’ compensation fund, (2) were not group rated, and (3) reported payroll and paid premiums in an occupational, or “manual” classification for which the non-group effective base rate was inflated due to application of the group experience rating plan.   However, not all manual classifications were inflated under the group experience rating plan so not all non-group rated owners will be Class Members.

Owners can find out how much their claims are worth by visiting http://www.ohiobwclawsuit.com/ and then accessing the Online Policy Information Portal.  In order to access the Online Policy Information Portal, a business owner must submit his or her BWC Policy Number and the claim number listed on the claim form sent by the Settlement Administrator.

The deadline for submitting a claim form is Oct. 22.  That is also the deadline for filing an objection with the court over the fairness of the settlement.  A Final Approval Hearing to approve the settlement is currently scheduled for 9 a.m. on November 19 in Judge Richard McMonagle’s courtroom at the Cuyahoga County Justice Center, Courtroom 16-D, 1200 Ontario Street, Cleveland, OH.

For additional information, please contact Rick Hepp at 216.363.4657 or rhepp@beneschlaw.com.

NLRB General Counsel Seeks To Hold Franchisors Liable For Acts Of Franchisees

In a sweeping departure from existing law, National Labor Relations Board (“Board”) General Counsel, Richard F. Griffin, announced yesterday that he will name McDonald’s USA LLC as a joint employer in dozens of unfair labor practice cases filed by or on behalf of employees of McDonald’s franchisees. This action seeks to fundamentally alter the contours of joint employer liability which have existed for decades. If this position is sustained by the Board, the consequences to the franchise industry, and any business utilizing contingent or leased employees, will be dramatic. 
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DOL Wants FMLA to Cover Same-Sex Couples

The U.S. Department of Labor (DOL) is seeking to extend coverage of the federal Family and Medical Leave Act (FMLA) to same-sex couples following a Supreme Court ruling that federal benefits cannot be limited based on a definition of marriage as a union between one man and one woman.

In United States v. Windsor, 133 S. Ct. 2675 (2013), the Court found the Defense of Marriage Act’s definition of marriage unconstitutional for treating same and opposite-sex couples differently under federal law.

FMLA entitles eligible employees to unpaid leave for family, medical and military- related reasons. Currently, an employee in a same-sex marriage may not be eligible to take FMLA leave to care for a partner, a partner’s child or a partner’s parent with a serious health condition. The DOL’s proposal would change that by giving same-sex marriages equal access to FMLA benefits currently enjoyed by opposite-sex marriages.

In determining the legal status of marriages and qualification for leave benefits under the FMLA, the new rule adheres to state law where the couple was married rather than their current state of residence. The DOL says this will ensure equal protection for all valid marriages under federal law. The rule change provides married same-sex partners with leave to care for a spouse or a child or parent of the employee’s spouse.

The DOL is currently accepting comments on its proposal. The full text of the NPRM, as well as information on the deadline for submitting comments and the procedures for submitting comments, can be found at www.dol.gov/whd/fmla/nprm-spouse.

Additional Information

For additional information, please contact Mike Buck, Chair of Benesch’s Labor & Employment Practice Group, at mbuck@beneschlaw.com or 216.363.4694.

Supreme Court Issues Decisions that Change Employment Law Landscape

The U.S. Supreme Court wrapped up its 2013 session by handing down three decisions that may significantly affect recent controversial rulings by the National Labor Relations Board, Affordable Care Act mandates on employer birth control coverage and union fees imposed on certain government employees.

NLRB

In National Labor Relations Board v. Noel Canning, the Court invalidated President Barack Obama’s recess appointments in 2012 to the five-member Board, an administrative agency that decides whether an employer engaged in unfair labor practices.  The Court held the President’s appointment of three members to the Board was unconstitutional because the Senate, which normally advises and consents on such appointments, was not in a sufficiently long enough recess to invoke the Recess Appointments Clause of the Constitution. 

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Employers May Now Have To Provide Employees With The Added Comfort Of Working From Home

The Sixth Circuit Court of Appeals has put employers on notice that they may need to accommodate employees with disabilities by allowing them to work remotely from home, forcing employers to reconsider whether a physical presence in the office is an essential job function.

With its decision in EEOC v. Ford, 2014 U.S. App. LEXIS 7502 (6th Cir. 2014), the court has redefined what employers can deem to be the essential job functions of their employees.  Now absent from this list is the need to attend work at a brick-and-mortar location.   Continue reading

Some Employers Likely to See Increased Litigation Costs in EEOC Cases

Employers in Indiana, Illinois, and Wisconsin are likely to see their legal fees increase as a result of a Seventh Circuit decision that allows the U.S. Equal Employment Opportunity Commission to file suit immediately instead of first trying to negotiate a settlement with the employer.   Continue reading

NLRB Stands Behind Swearing Salesman

Employers beware: the National Labor Relations Board (“Board”) decided that an employer, a car dealership, unlawfully discharged an employee after his lewd outburst in a meeting. On remand from the United States Court of Appeals for the Ninth Circuit, the Board reapplied the four-factor Atlantic Steel balancing test to determine if the employee’s outburst was concerted activity or whether he in fact sacrificed his protection under the National Labor Relations Act (“NLRA”). Continue reading